(Circulated by authority of
the Minister for Immigration and Citizenship,

Senator the Hon. Chris
Evans)

MIGRATION LEGISLATION
AMENDMENT BILL (No. 2) 2008

OUTLINE

The Migration Legislation
Amendment Bill (No. 2) 2008 (‘the Bill’) amends the
Migration Act 1958 (‘the Act’) to clarify and
enhance provisions in the Act that relate to merits and judicial
review of migration decisions. In particular, the
Bill:

clarifies that the
Migration Review Tribunal and the Refugee Review Tribunal
(‘the Tribunals’) may invite either orally (including
by telephone) or in writing, review applicants or third parties to
give information;

reinstates effective and
uniform time limits for applying for judicial review of a migration
decision in the Federal Magistrates Court, Federal Court and High
Court (‘the Courts’); and

limits appeals against
judgments by the Federal Magistrates Court and the Federal
Court that make an order or
refuse to make an order to extend time to apply for judicial
review of migration decisions.

The amendments relating to
the Tribunals seek to address decisions of the Full Federal Court
which held that whenever the Tribunals require information from a
person; this must be done by written invitation. Enabling the
Tribunals to obtain information from review applicants and third
parties orally (including, for example, by telephone) will ensure
that review of migration decisions can be conducted more
efficiently and may result in an applicant’s status being
resolved more quickly.

The amendments relating to
time limits are important as without effective time limits, there
is an incentive for unsuccessful visa applicants to take advantage
of the delays litigation can cause by waiting until their removal
from Australia is imminent before lodging an application for
review. These amendments also provide the Courts with broad
discretion to extend the time period for applying for review of a
migration decision where the Courts consider an extension is
necessary in the interests of the administration of justice.
Vesting the Courts with such broad discretion will protect
applicants from possible injustice.

The limitation on appeals
against extension of time decisions will help ensure the
effectiveness of the new time limits for applying for judicial
review of a migration decision as inserted by the
Bill.

financial
impact statement

The financial impact of
these amendments will be negligible. These measures may in
fact represent a cost saving to the Department of Immigration and
Citizenship, the Tribunals and the Courts.

Migration
Legislation amendment Bill (No. 2) 2008

notes
on individual clauses

Clause
1 Short
title

1. Clause 1
provides that the short title by which the Act may be cited is the
Migration Legislation Amendment Act (No. 2) 2008 .

Clause
2
Commencement

2. Subclause
2(1) provides that each provision of the Act specified in column 1
of the table commences, or is taken to have commenced, in
accordance with column 2 of the table.

3. Table Item 1
provides that sections 1 to 3 of the Act and anything in the Act
not elsewhere covered by the table will commence on the day on
which the Act receives the Royal Assent.

4. Table Item 2
provides that Schedules 1, 2 and 3 to the Act commence on a single
day to be fixed by Proclamation. However, it also provides
that if any provision(s) do not commence within the period of 6
months beginning on the day on which the Act receives the Royal
Assent, they commence on the first day after the end of that
period.

5. Subclause 2(2)
explains that column 3 of the table contains additional information
that is not part of this Act. It specifies that information
in this column may be added to or edited in any published version
of this Act.

6. An explanatory
note is provided to assist the reader at the end of this
table. It specifies that the table relates only to the
provisions of this Act as originally passed by both Houses of
Parliament and assented to. It states clearly that the table
will not be expanded to deal with provisions inserted in this Act
after it receives the Royal Assent.

Clause
3
Schedule(s)

7. This clause
provides that each Act specified in a Schedule to the Migration
Legislation Amendment Act (No. 2) 2008 is amended or repealed
as set out in the applicable items in the Schedule concerned.
In addition, any other item in a Schedule to the Migration
Legislation Amendment Act (No. 2) 2008 has effect according to
its terms.

SCHEDULE 1 -
Amendments relating to merits review

Migration Act
1958

Item
1
Subsection 359(2)

8. This item
inserts “, either orally (including by telephone) or in
writing” after “may invite” in subsection 359(2)
of the Act. This item also includes a note to provide that
the heading to section 359 is altered by omitting the word
“additional”.

9. Subsection
359(1) of the Act provides the Migration Review Tribunal (MRT) with
the power to get any information it considers relevant.
Importantly, it provides that once the MRT has such information, it
must have regard to this information in making its decision on the
review.

10. Currently, subsection
359(2) provides that without limiting subsection (1), the MRT may
invite a person to give additional information. In addition,
subsection 359(3) provides that if an invitation is given to a
person other than the Secretary, the invitation must be given by
one of the methods in section 379A. In general, section 379A
provides that the MRT must give documents to a person, other than
the Secretary, by hand, handing it to another person who is at the
last residential or business address of the recipient, dispatching
by prepaid post or other prepaid means or transmitting by fax,
e-mail or other electronic means.

11. The amendments to
subsection 359(2) outline that the MRT has the power to seek
information orally, by whichever method it chooses, including, but
not limited to, by telephone. The MRT will still be able to invite
a person by written invitation to provide information. These powers
are a subset of the MRT’s broad powers under subsection
359(1). The power to seek information orally or in writing applies
at any stage in the review.

12. The amendment seeks to
address several Full Federal Court decisions including SZKTI v
Minister for Immigration and Citizenship [2008] FCAFC 83
(‘ SZKTI ’). In this case, which relates to
section 424 (which is similar in terms to section 359 except that
it relates to the Refugee Review Tribunal (RRT)), the Full Federal
Court held in SZKTI that the Parliament did not authorise
the RRT to get additional information from a person pursuant to its
general power under subsection 424(1) without strictly complying
with the specified procedure set out in subsections 424(2) and
(3). That is, the RRT is not able to obtain information
orally from the applicant under section 424. The original
policy intention behind subsection 359(1) was to enable the
Tribunals to request information via less formal means, for
example, orally over the telephone. These amendments seek to give
effect to this policy intention following the Full Federal Court
decision in SZKTI .

13. By ensuring that the
MRT may seek information under subsection 359(2) orally (including
by telephone), the MRT will be able to more efficiently obtain the
information it requires to make a decision. Conducting
investigations in writing can cause considerable delay without
necessarily improving procedural fairness to the applicant.
In addition, the amendment will ensure that the MRT is able
to obtain relevant information where the only way of contacting a
person is by oral means, for example, where only a telephone number
is provided. In all circumstances, where information is
collected (including by telephone) that is adverse to the applicant
and which the MRT considers would be the reason or part of the
reason for affirming the decision under review, clear particulars
of that information will be put to the applicant in writing.
The applicant would then have an opportunity to comment on such
adverse information within a prescribed period before a decision on
review is made.

14. The removal of the
word “additional” from the heading in section 359 makes
it clear that the MRT’s power to seek information, orally
(including by telephone) or by written invitation, applies to all
information and seeks to deal with the uncertainty surrounding what
information is covered by section 359.

Item
2
Subsection 359(2)

15. This item omits the
word “additional” from subsection 359(2) of the
Act. This item also inserts a note which provides that the
heading to section 359 is altered by omitting the word
“additional”.

16. Currently, subsection
359(2) provides that the MRT may invite a person to give additional
information. The amendments made by item 1 of this Schedule
provide that the MRT may seek this information either orally
(including by telephone), or by written invitation. The
removal of the word “additional” makes it clear that
the MRT’s power to seek information, orally (including by
telephone) or by written invitation, applies to all information and
deals with some uncertainty surrounding what information is covered
by section 359.

Item
3
Subsection 359(3)

17. This item omits the
words “If an invitation” in subsection 359(3) and
substitutes the words “If a written invitation under
subsection (2)”.

18. This item clarifies that
subsection 359(3) only applies where the MRT has written to invite
a person to provide information. This subsection does not
apply where the MRT has orally invited a person to provide
information. Subsection 359(2), as amended by item 1 of this
Schedule, provides that the MRT may invite either orally (including
by telephone) or in writing, a person to give
information.

19. Subsection 359(3) provides
that if a written invitation is given to a person other than the
Secretary, the invitation must be given by one of the methods in
section 379A. Broadly, section 379A provides that the MRT
must give documents to a person other than the Secretary by hand,
handing it to another person who is at the last residential or
business address of the recipient, dispatching by prepaid post or
other prepaid means or transmitting by fax, e-mail or other
electronic means.

Item
4
Paragraph 359B(1)(a)

20. This item repeals
paragraph 359B(1)(a) and substitutes it with a new paragraph
359B(1)(a).

21. Subsection 359B(1)
sets out the requirements for an invitation where, among other
things, a person is invited in writing to give information under
section 359. Those requirements are that the invitation is to
specify the way the information is to be given, being the way the
MRT considers appropriate in the circumstances.

22. This item clarifies
that subsection 359B(1), as it relates to invitations under section
359, only relates to written invitations. New subsection
359(2), as amended by item 1 of this Schedule, provides that the
MRT may invite either orally (including by telephone) or in
writing, a person to give information.

24. Currently subsection
359B(1) sets out the requirements for a written invitation where,
among other things, a person is invited by the MRT under section
359 to give additional information. The written invitation is
to specify the way in which the additional information must be
given, being the way the MRT considers appropriate in the
circumstances. These amendments remove the word
“additional” from subsection 359B(1) to ensure
consistency with the new wording in subsection 359(2), as amended
by items 1 and 2 of this Schedule.

Item
6
Subsection 359B(2)

25. This item omits the
word “additional” from subsection
359B(2).

26. Relevantly,
subsection 359B(2) provides that where the MRT invites a person to
give additional information otherwise than by interview, the
response to that invitation is to be given within a specified
period, being a prescribed period, or if no period is prescribed, a
reasonable period. The removal of the word
“additional” in subsection 359B(2) ) ensures
consistency with the new wording in subsection 359(2), as amended
by items 1 and 2 of this Schedule.

Item
7
Paragraph 359C(1)(a)

27. This item repeals
paragraph 359C(1)(a) and substitutes it with a new paragraph
359C(1)(a). This item also includes a note to provide that
the heading to section 359C is altered by omitting the word
“additional”.

28. Subsection 359C(1)
currently provides that where a person is invited by the MRT
under section 359 to give additional information, but does not give
the information before the time for giving it has passed, then the
MRT may make a decision on the review without taking any further
action to obtain the additional information.

29. This item clarifies
that subsection 359C(1) only applies to written invitations under
section 359. New section 359, as amended by item 1 of this
Schedule, provides that the MRT may invite either orally (including
by telephone) or in writing, a person to give
information.

30. The removal of the
word “additional” from the heading in section 359C
ensures consistency with the new wording in subsection 359(2), as
amended by items 1 and 2 of this Schedule.

Item 8
Subsection 359C(1)

31. This item omits the
last occurring “additional” in subsection
359C(1).

32. Subsection 359C(1)
currently provides that where a person is invited by the MRT under
section 359 to give additional information, but does not give the
information before the time for giving it has passed, then the MRT
may make a decision on the review without taking any further action
to obtain the additional information. The amendments remove the
word “additional” in subsection 359C(1) to ensure
consistency with the new wording in subsection 359(2), as amended
by items 1 and 2 of this Schedule.

Item
9
Subsection 424(2)

33. This item inserts
“, either orally (including by telephone) or in
writing,” after “may invite” in subsection 424(2)
of the Act. This item also includes a note to provide that
the heading to section 424 is altered by omitting the word
“additional”.

34. Subsection 424(1)
provides the Refugee Review Tribunal (RRT) with the power to get
any information it considers relevant. Importantly it
provides that once the RRT gets such information, the Tribunal must
have regard to that information in making its decision on the
review.

35. Currently, subsection
424(2) provides that without limiting subsection (1), the RRT may
invite a person to give additional information. Also
relevant, subsection 424(3) provides that if an invitation is given
to a person other than the Secretary, the invitation must be given
by one of the methods in section 441A. In general, section
441A provides that the RRT must give documents to a person other
than the Secretary by hand, handing it to another person who is at
the last residential or business address of the recipient,
dispatching by prepaid post or other prepaid means or transmitting
by fax, e-mail or other electronic means.

36. The amendments to
subsection 424(2) outline that the RRT has the power to seek
information orally, by whichever method it chooses, including, but
not limited to by telephone. The RRT will still be able to invite a
person by written invitation to provide information. These powers
are a subset of the RRT’s broad powers under subsection
424(1). The power to seek information orally or in writing applies
at any stage in the review.

37. The amendment seeks
to address several Full Federal Court decisions including SZKTI
v Minister for Immigration and Citizenship [2008] FCAFC 83
(‘SZKTI’). The Full Federal Court held in SZKTI
that the Parliament did not authorise the RRT to get additional
information from a person pursuant to its general power under
subsection 424(1) without strictly complying with the specified
procedure set out in subsections 424(2) and (3). That is, the
RRT is not able to orally invite an applicant to provide
information under subsection 424. The original policy
intention behind subsection 424(1) was to enable the Tribunals to
request information via less formal means, for example, orally over
the telephone. These amendments seek to give effect to this policy
intention following the Full Federal Court decision in
SZKTI .

38. By ensuring that the RRT
may obtain information under subsection 424(2) orally (including by
telephone), the RRT will be able to more efficiently obtain the
information it requires to make a decision. Conducting
investigations in writing can cause considerable delay without
necessarily improving procedural fairness to the applicant.
In addition, it will ensure that the RRT is able to obtain relevant
information where the only way of contacting a person is by oral
means, for example, where only a telephone number is
provided. In all circumstances, where information is
collected that is adverse to the applicant and which the RRT
considers would be the reason or part of the reason for affirming
the decision under review, clear particulars of that information
will be put to the applicant in writing. The applicant would then
have an opportunity to comment on such adverse information within a
prescribed period before a decision on review is made.

39. The removal of the word
“additional” from the heading in section 424 makes it
clear that the RRT’s power to seek information, orally
(including by telephone) or by written invitation, applies to all
information and seeks to deal with the uncertainty surrounding what
information is covered by section 424.

Item
10 Subsection
424(2)

40. This item omits the word
“additional” from subsection 424(2) of the Act.
This item also inserts a note which provides that the heading to
section 424 is altered by omitting the word
“additional”.

41. Currently, subsection
424(2) provides that the RRT may invite a person to give additional
information. The amendments made by item 9 of this Schedule
provide that the RRT may seek this information either orally
(including by telephone), or by written invitation. The
removal of the word “additional” makes it clear that
the RRT’s power to seek information, orally (including by
telephone) or by written invitation, applies to all information and
seeks to deal with the uncertainty surrounding what information is
covered by section 424.

Item
11
Subsection 424(3)

42. This item omits the words
“If an invitation” in subsection 424(3) and substitutes
the words “If a written invitation under subsection
(2)”.

43. This item clarifies that
subsection 424(3) applies where the invitation to provide
information is given by the RRT in writing. Subsection
424(2), as amended by item 9 of this Schedule, provides that the
RRT has the power to seek information orally (including by
telephone) or in writing.

44. Subsection 424(3) provides
that if an invitation is given to a person other than the
Secretary, the invitation must be given by one of the methods in
section 441A. In general, section 441A provides that the RRT
must give documents to a person other than the Secretary by hand,
handing it to another person who is at the last residential or
business address of the recipient, dispatching by prepaid post or
other prepaid means or transmitting by fax, e-mail or other
electronic means.

Item
12
Paragraph 424B(1)(a)

45. This item repeals paragraph
424B(1)(a) and substitutes it with a new paragraph
424B(1)(a).

46. Subsection 424B(1) sets out
the requirements for an invitation where, among other things, a
person is invited in writing to give information under section
424. Those requirements are that the invitation is to specify
the way the information is to be given, being the way the RRT
considers appropriate in the circumstances.

47. This item clarifies that
subsection 424B(1), as it relates to invitations under section 424,
only relates to written invitations. New subsection 424(2),
as amended by item 9 of this Schedule, provides that the RRT may
invite either orally (including by telephone) or in writing, a
person to give information.

49. Currently subsection
424B(1) sets out the requirements for a written invitation where,
among other things, a person is invited by the RRT under section
424 to give additional information. The written invitation is
to specify the way in which the additional information must be
given, being the way the RRT considers appropriate in the
circumstances. These amendments remove the word
“additional” from subsection 424B(1) to ensure
consistency with the new wording in subsection 424(2), as amended
by items 9 and 10 of this Schedule.

Item
14
Subsection 424B(2)

50. This item omits the word
“additional” from subsection 424B(2).

51. Relevantly, subsection
424B(2) provides that where the Refugee Review Tribunal (RRT)
invites a person to give additional information otherwise than by
interview, the response to that invitation is to be given within a
specified period, being a prescribed period, or if no period is
prescribed, a reasonable period. The removal of the word
“additional” in subsection 424B(2) ensures consistency
with the new wording in subsection 424(2), as amended by items 9
and 10 of this Schedule.

Item
15
Paragraph 424C(1)(a)

52. This item repeals paragraph
424C(1)(a) and substitutes it with a new paragraph
424C(1)(a). This item also includes a note to provide that
the heading to section 424C is altered by omitting the word
“additional”.

53. Subsection 424C(1)
currently provides that where a person is invited by the RRT under
section 424 to give additional information, but does not give the
information before the time for giving it has passed, then the RRT
may make a decision on the review without taking any further action
to obtain the additional information.

54. This item clarifies that
subsection 424C(1) only applies to written invitations under
section 424. New section 424, as amended by item 9 of this
Schedule, provides that the RRT may invite either orally (including
by telephone) or in writing, a person to give information and seeks
to deal with the uncertainty surrounding what information is
covered by section 424C.

55. The removal of the word
“additional” from the heading in section 424C ensures
consistency with the new wording in subsection 424(2), as amended
by items 9 and 10 of this Schedule.

Item
16
Subsection 424C(1)

56. This item omits the
last occurring “additional” in subsection
424C(1).

57. Subsection 424C(1)
currently provides that where a person is invited by the RRT under
section 424 to give additional information, but does not give the
information before the time for giving it has passed, then the RRT
may make a decision on the review without taking any further action
to obtain the additional information. The amendments remove the
word “additional” in subsection 424C(1) to ensure
consistency with the new wording in subsection 424(2), as amended
by items 9 and 10 of this Schedule.

Item
17
Application

58. This item provides that the
amendments made by Schedule 1 apply to invitations made by the MRT
and RRT on or after commencement of this Schedule.

SCHEDULE 2—Amendments
relating to judicial review

Migration Act
1958

Item
1
Subsection 477(1)

59. This item amends subsection
477(1) by omitting the words “28 days of the actual (as
opposed to deemed) notification of the decision” and
replacing them with the words “35 days of the date of the
migration decision”.

60. Subsection 477(1) currently
provides that where a person applies to the Federal Magistrates
Court (‘the FMC’) for a remedy in exercise of the
Court’s original jurisdiction, the person must make the
application within 28 days of the actual notification of the
decision (rather than deemed notification).

61. Two important changes to
subsection 477(1) are made by this item. Firstly, the 28 day
period for lodging an application to the FMC for judicial review of
a migration decision will be changed to 35 days. Secondly,
the new 35 day period will commence to run from the “date of
the migration decision” rather than from the time of actual
notification.

62. This item removes actual
notification as the time from which the time period for seeking
judicial review starts to run because it can be difficult to
establish when and if, an applicant is actually notified. In
addition, for migration decisions made by the Migration Review
Tribunal and the Refugee Review Tribunal (‘the
Tribunals’), the Full Federal Court held in Minister for
Immigration and Citizenship v SZKKC [2007] FCAFC 105
(‘ SZKKC ’) that the time period for seeking
judicial review of a Tribunal decision will begin to run only if
the applicant is personally served with the written statement of
reasons of the Tribunal by a person authorised by the Registrar of
the Tribunal. It would be expensive and impractical for the
Tribunals to implement the practice of personally serving a written
statement of the reasons for the decision. As a result, the
time limits for seeking judicial review of a migration decision in
subsection 477(1) are not currently effective.

63. The change to the
‘date of the migration decision’ from which time
commences to run for the purpose of time limits for seeking
judicial review of a migration decision, will provide greater
certainty and overcome the practical difficulties associated with
personally serving a written statement of reasons. Item 2 of
this Schedule inserts a definition of “date of the migration
decision”.

Item
2
Subsections 477(2), (3) and (4)

64. This item repeals
subsections 477(2), (3) and (4) of the Act and substitutes new
subsections 477(2), (3), (4) and (5).

65. Current subsection 477(2)
provides that the FMC may, by order, extend the current 28 day time
period for seeking judicial review of a migration decision by up to
56 days if:

· an application
for that order is made within 84 days of the actual notification of
the decision; and

· the FMC is
satisfied that it is in the interests of the administration of
justice to make the order to extend time.

66. Current subsection 477(3)
provides that the FMC may not make an order extending time to apply
for judicial review of a migration decision, outside the 28 day
period, other than that provided for by subsection (2). This
provision is now redundant as a result of the amendment to
subsection 477(2) by this item which provides the FMC with broad
discretion to extend time. Current subsection 477(4) provides that
the regulations may prescribe the way of notifying a person of a
decision for the purposes of section 477. However, this
provision is no longer necessary because new subsection 477(1)
provides that the time for applying for review of a migration
decision will run from the date of a migration decision and not
from notification. There are currently no regulations made
under subsection 477(4).

67. New subsection 477(2) will
enable the FMC to order an extension of the 35 day time period for
applying for judicial review of a migration decision if paragraphs
(a) and (b) are satisfied. Paragraph 477(2)(a) will now
require applicants to state in their applications why they consider
it necessary in the interests of the administration of justice for
the FMC to make the extension of time order. Requiring applicants to give reasons in their
applications for an extension of time will assist the FMC by
drawing early attention to cases where there is a compelling reason
to grant an extension of the time. This may assist the Court
to deal with requests for extension of time more quickly and may
thereby result in a more efficient use of court
resources.

68. New paragraph 477(2)(b)
provides that the FMC must be satisfied that it is necessary in the
interests of the administration of justice to make the order to
extend the 35 day time period. This paragraph provides a new
test for the granting of extension time orders. It also
removes, the restriction on the period by which the FMC may extend
time (56 days) and the requirement that the application must be
made within 84 days. The FMC will have broad discretion to
extend time for applying for judicial review of a migration
decision by whatever period it considers appropriate, provided the
FMC is satisfied that it is necessary in the interests of the
administration of justice. Vesting the FMC with broad discretion to
extend time where it is necessary in the interests of the
administration of justice will protect applicants from possible
injustice.

69. New subsection 477(3)
creates a definition of ‘date of migration decision’
for the purpose of section 477. Subsection 477(1), as amended
by item 1 of this Schedule, provides that the 35 day period for
applying for review of a migration decision, starts to run from the
date of the migration decision.

70. A migration decision is
currently defined in section 5 of the Act. A migration
decision means:

(a) a
privative clause decision; or

(b) a
purported privative clause decision; or

(c) a
non-privative clause decision.

71. Paragraph (a) of the
definition of the ‘date of migration decision’ provides
that in the case of a migration decision made under subsection
43(1) of the Administrative Appeals Tribunal Act 1975 (the
AAT Act), ‘date of the migration decision’ means date
of the written decision under subsection 43(1) of that Act.
Subsection 43(1) of the AAT Act provides, amongst other things,
that the Administrative Appeals Tribunal (the AAT) must make a
decision in writing and give reasons for its decision. The
AAT has authority to review certain migration decisions. The
date of the AAT’s written decision will be the date of the
migration decision for the purpose of determining when time limits
for applying for judicial review of that AAT migration decision
start to run.

72. Paragraph (b) of the
definition of the ‘date of migration decision’ provides
for written migration decisions made by the Migration Review
Tribunal (MRT) or the Refugee Review Tribunal (RRT). Where
the MRT or RRT makes a written decision, paragraph (b) provides
that the date of the migration decision will be the date of the
written statement for the purpose of determining when time limits
for applying for judicial review of that MRT or RRT decision start
to run. Subsections 368(1) and 430(1) provide that when the
MRT or RRT makes its decision on review, it must prepare a written
statement that sets out matters relevant to the
decision.

73. Paragraph (c) of the
definition of the ‘date of migration decision’ provides
for oral migration decisions made by the MRT or RRT. If the
MRT or RRT makes an oral decision, then the date of the migration
decision will be the date of that oral decision for the purpose of
determining when time limits for applying for judicial review of
that MRT or RRT decision start to run.

74. Paragraph (d) of the
definition of the ‘date of migration decision’ provides
for instances not covered by paragraphs (a) to (c). In such a
case, the date of the migration decision will be the date of the
written notice of the decision, or if no such notice exists, the
date the Court considers appropriate. There are a number of
provisions in the Act that provide that the Minister for
Immigration and Citizenship (or his or her delegate) must notify by
written notice, an applicant for a visa or a visa holder of a
decision made by the Minister (or his or her delegate) under the
Act. In these instances, the date of the migration decision
will be the date of that written notice for the purpose of
determining when the time period for seeking judicial review of the
Minister’s decision starts to run. If a written notice
does not exist, then the date of the migration decision will be the
date that the Court considers appropriate.

75. By setting out a definition
of ‘date of migration decision’ there will be clarity
around when time limits for applying for judicial review start to
run.

76. New subsection 477(4)
clarifies that for the purpose of time limits, the 35 day time
period starts to run despite a failure to comply with any of the
provisions mentioned in subsection (3). This subsection will
ensure that the time limits operate effectively by seeking to
ensure that applicants cannot argue that there was no date of
decision for the purposes of time limits because the decision did
not comply with the legislative requirements for that
decision. For example, the effect of this subsection will be
that even where a written statement for the decision does not
comply with all the requirements set out in subsection 368(1) (for
the MRT) or subsection 430(1) (for the RRT), this will not affect
the time limits starting to run. It will be possible for the
FMC to address injustices caused by this provision by using its
broad discretion to order an extension of time under subsection
477(2), as amended by this item, where it is necessary in the
interests of the administration of justice.

77. New subsection 477(5)
clarifies that for the purpose of seeking judicial review in the
FMC of a migration decision, the new 35 day time limit commences on
the date of decision, notwithstanding the validity of the migration
decision. That is, the time limits will begin irrespective of
whether the migration decision is valid
or not. This subsection seeks to ensure that the FMC is not
required to examine whether there is a jurisdictional error in the
migration decision in order to determine whether the application
for review is within time. It will be possible for the
FMC to address injustices caused by this provision by using its
broad discretion to order an extension of time under subsection
477(2), as amended by this item, where it is necessary in the
interests of the administration of justice.

Item
3
Subsection 477A(1)

78. This item amends subsection
477A(1) by omitting all the words “28 days of the actual (as
opposed to deemed) notification of the decision” and
replacing them with the words “35 days of the date of the
migration decision”.

79. Subsection 477A(1)
currently provides that where a person applies to the Federal Court
for a remedy in exercise of the court’s original
jurisdiction, the person must make the application within 28 days
of the actual notification of the decision (rather than deemed
notification).

80. Two important changes to
subsection 477A(1) are made by this item. Firstly, the 28 day
period for lodging an application to the Federal Court for judicial
review of a migration decision will be changed to 35 days.
Secondly, the new 35 day period will commence to run from the
“date of the migration decision” rather than from the
time of actual notification.

81. This item removes actual
notification as the time from which the time period for seeking
judicial review starts to run because it can be difficult to
establish when and if, an applicant is actually notified. In
addition, for migration decisions made by the MRT and the RRT
(‘the Tribunals’), the Full Federal Court held in
Minister for Immigration and Citizenship v SZKKC [2007]
FCAFC 105 (‘ SZKKC ’) that the time period for
seeking judicial review of a Tribunal decision will begin to run
only if the applicant is personally served with the written
statement of reasons of the Tribunal by a person authorised by the
Registrar of the Tribunal. While SZKKC was in relation
to time limits for seeking judicial review of a migration decision
to the FMC under section 477, it also applies to time limits in the
Federal Court. It would be expensive and impractical for the
Tribunals to implement the practice of personally serving a written
statement of the reasons for the decision. As a result, the
time limits for seeking judicial review of a migration decision in
subsection 477A(1) are not currently effective.

82. The change to the
‘date of the migration decision’ from which time
commences to run for the purpose of time limits for seeking
judicial review, will provide greater certainty and overcome the
practical difficulties associated with personally serving a written
statement of reasons. Item 2 of this Schedule inserts a
definition of “date of the migration
decision”.

Item
4
Subsections 477A(2), (3) and (4)

83. This item repeals current
subsections 477A(2), (3) and (4) of the Act and substitutes new
subsections 477A(2), (3), (4) and (5).

84. Current subsection 477A(2)
provides that the Federal Court may, by order, extend the current
28 day period for seeking judicial review by up to 56 days
if:

· an application
for that order is made within 84 days of the actual notification of
the decision; and

· the Federal
Court is satisfied that it is in the interests of the
administration of justice to make the order to extend
time.

85. Current subsection 477A(3)
provides that the Federal Court may not make an order extending
time to apply for judicial review of a migration decision, outside
the 28 day period, other than that provided for by subsection
(2). This provision is now redundant as a result of the
amendment to subsection 477A(2) by this item which provides the
Federal Court with broad discretion to extend time. Existing
subsection 477A(4) currently provides that the Regulations may
prescribe the way of notifying a person of a decision for the
purposes of section 477A. However, this provision is no
longer necessary because new subsection 477A(1), as amended by item
3 of this Schedule, provides that the time for applying for review
will run from the date of a migration decision and not from
notification. There are currently no regulations made under
subsection 477A(4).

86. New subsection 477A(2) will
enable the Federal Court to order an extension of the 35 day time
period for applying for judicial review of a migration decision if
paragraph (a) and (b) are satisfied. Paragraph 477A(2)(a)
requires applicants to state in their applications why they
consider it necessary in the interests of the administration of
justice for the Federal Court to make the extension of time
order. Requiring applicants to give
reasons in their applications for an extension of time will assist
the Federal Court by drawing early attention to cases where there
is a compelling reason to grant an extension of the time.
This may assist the Court to deal with requests for extension of
time more quickly and may thereby result in a more efficient use of
court resources.

87. Paragraph 477A(2)(b)
provides that the Federal Court must be satisfied that it is
necessary in the interests of the administration of justice to make
the order to extend the 35 day period. This paragraph
provides a new test for the granting of extension time
orders. It also removes, the restriction on the period by
which the Federal Court may extend time (56 days) and the
requirement that the application must be made within 84 days.
The Federal Court will have broad discretion to extend time
for applying for judicial review of a migration decision by
whatever period it considers appropriate, provided the Federal
Court is satisfied that it is necessary in the interests of the
administration of justice. Vesting the Federal Court with
broad discretion to extend time where it is necessary in the
interests of the administration of justice will protect applicants
from possible injustice, while also ensuring that the extension is
only granted where there are compelling reasons to do
so.

88. New subsection 477A(3)
provides a definition of “date of the migration
decision” for the purpose of section 477A, that is, for the
purpose of time limits for applying to the Federal Court for review
of a migration decision. Subsection 477A(1), as
amended by item 3 of this Schedule, provides that the 35 day period
for applying for review of a migration decision, starts to run from
the date of the migration decision. The definition is given the
same meaning as that provided by subsection 477(3), as amended by
item 2 of this Schedule.

89. New subsection 477A(4)
clarifies that for the purpose of time limits, the 35 day time
period starts to run despite a failure to comply with any of the
provisions mentioned in subsection (3). This subsection will
ensure that the time limits operate effectively by seeking to
ensure that applicants cannot claim that there was no date of
decision for the purposes of time limits because the decision did
not comply with the legislative requirements for that
decision. For example, the effect of this subsection will be
that where a written statement for the decision does not comply
with all the requirements set out in subsection 368(1) (for the
MRT) or subsection 430(1) (for the RRT), this will not affect the
time limits starting to run. It will be possible for the
Federal Court to address injustices caused by this provision by
using its broad discretion to order an extension of time under
subsection 477A(2), as amended by this item, where it is necessary
in the interests of the administration of justice.

90. New subsection 477A(5)
clarifies that for the purpose of seeking judicial review in the
Federal Court of a migration decision, the new 35 day time limit
commences on the date of decision, notwithstanding the validity of
the migration decision. That is, the time limits will begin
irrespective of whether the migration
decision is valid or not. This subsection seeks to ensure
that the Federal Court is not required to examine whether there is
a jurisdictional error in the migration decision in order to
determine whether the application for review is within
time. It will be possible for the Federal Court to
address injustices caused by this provision by using its broad
discretion to order an extension of time under subsection 477A(2),
as amended by this item, where it is necessary in the interests of
the administration of justice.

Item
5
Subsection 486A(1)

91. This item amends subsection
486A(1) by omitting the words “28 days of the actual (as
opposed to deemed) notification of the decision” and
replacing them with the words “35 days of the date of the
migration decision”.

92. Subsection 486A(1)
currently provides that where a person applies to the High Court
for a remedy in exercise of the Court’s original
jurisdiction, the person must make the application within 28 days
of the actual notification of the decision (rather than deemed
notification).

93. Two important changes to
subsection 486A(1) are made by this item. Firstly, the 28 day
period for lodging an application to the High Court for judicial
review of a migration decision will be changed to 35 days.
Secondly, the new 35 day period will commence to run from the
“date of the migration decision” rather than from the
time of actual notification.

94. This item removes actual
notification as the time from which the time period for seeking
judicial review starts to run because it can be difficult to
establish when and if, an applicant is actually notified. In
addition, for migration decisions made by the MRT and the RRT, the
Full Federal Court held in Minister for Immigration and
Citizenship v SZKKC [2007] FCAFC 105
(‘ SZKKC ’) that the time period for seeking
judicial review of a Tribunal decision will begin to run only if
the applicant is personally served with the written statement of
reasons of the Tribunal by a person authorised by the Registrar of
the Tribunal. It would be expensive and impractical for the
Tribunals to implement the practice of personally serving a written
statement of the reasons for the decision. As a result, the
time limits for seeking judicial review of a migration decision in
subsection 486A(1) are not currently effective.

95. The change to the
‘date of the migration decision’ from which time
commences to run for the purpose of time limits for seeking
judicial review of a migration decision, will provide greater
certainty and overcome the practical difficulties associated with
personally serving a written statement of reasons.

Item
6
Subsections 486A(1A), (2) and (3)

96. This item repeals current
subsections 486A(1A), (2) and (3) of the Act and substitutes new
subsections 486A(2), (3), (4) and (5).

97. Current subsection 486A(1A)
provides that the High Court may order an extension of the current
28 day period for seeking judicial review of a migration decision
by up to 56 days if:

· an application
for that order is made within 84 days of the actual notification of
the decision; and

· the High Court
is satisfied that it is in the interests of the administration of
justice to make the order to extend time.

98. Current subsection 486A(2)
provides that the High Court may not make an order extending time
to apply for judicial review of a migration decision, outside the
28 day period, other than that provided for by subsection
(1A). This provision is now redundant as a result of the
amendment to subsection 486A(1A) by this item which provides the
High Court with broad discretion to extend time. Current
subsection 486A(3) provides that the Regulations may prescribe the
way of notifying a person of a decision for the purposes of section
486A. However, this provision is no longer necessary because
new subsection 486A(1), as amended by item 5 of this Schedule,
provides that the time for applying for review will run from the
date of a migration decision and not from notification. There
are currently no regulations made under subsection
486A(3).

99. New subsection 486A(2) will
enable the High Court to order an extension of the new 35 day time
period for applying for judicial review of a migration decision if
paragraphs (a) and (b) are satisfied. The new 35 day time
period for seeking judicial review in the High Court is inserted
into subsection 486(1) by item 5 of this Schedule.

100. New paragraph
486A(2)(a) requires applicants to state in their applications why
they consider it necessary in the interests of the administration
of justice for the High Court to make the extension of time
order. Requiring applicants to give
reasons in their applications for an extension of time will assist
the High Court by drawing early attention to cases where there is a
compelling reason to grant an extension of the time. This may
assist the Court to deal with requests for extension of time more
quickly and may thereby result in a more efficient use of court
resources.

101. New paragraph
486A(2)(b) provides that the High Court must be satisfied that it
is necessary in the interests of the administration of justice to
make the order to extend the 35 day time period. This
paragraph provides a new test for the granting of extension time
orders. It also removes, the restriction on the period by
which the High Court may extend time (56 days) and the requirement
that the application must be made within 84 days. The High Court
will have broad discretion to extend time for applying for judicial
review of a migration decision by whatever period it considers
appropriate, provided the High Court is satisfied that it is
necessary in the interests of the administration of
justice.

102. Vesting the
High Court with a broad discretion to extend time where it is
necessary in the interests of the administration of justice will
protect applicants from possible injustice, while also ensuring
that the extension is only granted where there are compelling
reasons to do so. In addition, ensuring that the High Court
has broad discretion to extend time seeks to address the High
Court’s decision in Bodruddaza v Minister for Immigration
and Multicultural Affairs [2007] HCA 14
(‘ Bodruddaza ’). In Bodruddaza , the High
Court held that the time limit imposed by section 486A of the Act
was invalid because it precluded the High Court from exercising
residual discretion. Discretion is a key element of the
jurisdiction to grant constitutional writs under paragraph 75(v) of
the Constitution.

103. New subsection
486A(3) provides a definition of “date of the migration
decision” for the purpose of section 486A, that is, for the
purpose of time limits for applying to the High Court for review of
a migration decision. Subsection 486A(1), as
amended by item 5 of this Schedule, provides that the 35 day period
for applying for review of a migration decision, starts to run from
the date of the migration decision. The definition is given the
same meaning as that provided by subsection 477(3), as amended by
item 2 of this Schedule.

104. New subsection
486A(4) clarifies that for the purpose of time limits, the 35 day
time period starts to run despite a failure to comply with any of
the provisions mentioned in subsection (3). This subsection
will ensure that the time limits operate effectively by seeking to
ensure that applicants cannot claim that there was no date of
decision for the purposes of time limits because the decision did
not comply with the legislative requirements for that
decision. For example, the effect of this subsection will be
that where a written statement for the decision does not comply
with all the requirements set out in subsection 368(1) (for the
MRT) or subsection 430(1) (for the RRT), this will not affect the
time limits starting to run. It will be possible for the High
Court to address injustices caused by this provision by using its
broad discretion to order an extension of time under subsection
486A(2), as amended by this item, where it is necessary in the
interests of the administration of justice.

105. New subsection
486A(5) clarifies that for the purpose of seeking judicial review
in the High Court of a migration decision, the new 35 day time
limit commences on the date of decision notwithstanding the
validity of that decision. That is, the time limits will
begin irrespective of whether the
migration decision is valid or not. This subsection seeks to
ensure that the High Court is not required to examine whether there
is a jurisdictional error in the migration decision in order to
determine whether the application for review is within
time. It will be possible for the High Court to
address injustices caused by this provision by using its broad
discretion to order an extension of time under subsection 477(2),
as amended by this item, where it is necessary in the interests of
the administration of justice.

Item
7
Application

106. This item
inserts an application provision for the amendments made to
sections 477, 477A and 486A.

107. The amendments
relating to the new time limits for seeking judicial review and the
extensions of those time limits, will apply to applications for
judicial review made on or after commencement of this
Schedule.

108. However, if a
migration decision is made before commencement, then the date of
the migration decision is treated as the date of commencement for
Schedule 2. That is, if a migration decision has been made
before commencement and judicial review proceedings have not
commenced before the commencement of Schedule 2, then the 35 day
time period for applying for judicial review will start to run from
the date of commencement of Schedule 2. The effect of this
application provision will be to give all applicants who have a
migration decision made before the date of commencement, the same
time limits as applicants whose decisions are made on the date of
commencement.

SCHEDULE 3 - Amendments relating to appeals against
extension of time decisions

Migration Act
1958

Item
1
At the end of section 476A

109. This item
inserts new subsections 476A(3), (4) and (5) into Division 2 of
Part 8 of the Act.

110. Section 476A
currently sets out the circumstances in which the Federal Court of
Australia (the Federal Court) has original jurisdiction in relation
to a migration decision and provides that where the Federal Court
has jurisdiction in relation to a migration decision, that
jurisdiction is the same as the jurisdiction of the High Court
under paragraph 75(v) of the Constitution.

111. New subsection
476A(3) provides that despite section 24 of the Federal Court of
Australia Act 1976 (the Federal Court Act), an appeal may not
be brought to the Federal Court from:

- a judgment of
the Federal Magistrates Court that makes an order or refuses to
make an order under subsection 477(2); or

- a judgment of
the Federal Court that makes an order or refuses to make an order
under subsection 477A(2).

112. Section 24 of
the Federal Court Act provides that the Federal Court has
jurisdiction to hear and determine, among other things, appeals
from judgments of the Federal Court (constituted by a single
Judge), and appeals from judgments of the Federal Magistrates Court
exercising original jurisdiction under a law of the
Commonwealth. New subsections 477(2) and 477A(2), as amended
by items 2 and 4 of Schedule 2 to this Bill, provide that the
Federal Magistrates Court and the Federal Court respectively may,
in the circumstances set out in those subsections, order an
extension to the new 35 day period for applying for judicial review
of a migration decision.

113. The purpose of
new subsection 476A(3) is to limit appeals to the Federal Court
against a judgment of the Federal Magistrates Court or a single
judge of the Federal Court to extend, or refuse to extend, the 35
day time limit on applications for a remedy to be granted in
exercise of each court’s original jurisdiction in relation to
a migration decision. New subsection 476A(3) will strengthen
the new time limits for applying for judicial review of migration
decisions, as inserted by Schedule 2 to this Bill. This will
discourage unsuccessful visa applicants from taking advantage of
the delays caused by litigation to prolong their stay in
Australia.

114. New subsection
476A(4) provides that despite section 33 of the Federal Court Act,
an appeal may not be brought to the High Court from a judgment of
the Federal Court that makes an order or refuses to make an order
under subsection 477A(2). Section 33 of the Federal Court Act
provides, among other things, that an appeal can be brought from a
judgment of the Full Federal Court if the High Court grants special
leave to appeal.

115. Under
subsection 20(1A) of the Federal Court Act, the Chief Justice of
the Federal Court may direct that the original jurisdiction of the
Federal Court is exercised by the Full Court if the matter coming
before the Federal Court’s original jurisdiction is of
sufficient importance. The purpose of new subsection 476A(4) is to
limit appeals to the High Court against a judgment of the Full
Federal Court to extend, or refuse to extend, the 35 day time limit
on applications to the Federal Court for a remedy to be granted in
exercise of the Federal Court’s original jurisdiction in
relation to a migration decision.

116. New subsection
476A(5) provides that in section 476A, “judgment” has
the same meaning as in the Federal Court Act. Section 4 of
the Federal Court Act, provides that “judgment” means a
judgment, decree or order, whether final or interlocutory, or a
sentence.

Item
2
Application

117. This item
provides that the amendment made by Schedule 3 applies to judgments
made on or after the commencement of this Schedule that make an
order or refuse to make an order under subsections 477(2) or
477A(2) of the Act.